Bill H.2167
187th (2011 - 2012)

An Act regulating employment of unauthorized workers

Bill Title: An Act regulating employment of unauthorized workers

By Representative Fernandes of Milford and Senator Moore, a joint petition (accompanied by bill, House, No. 2167) of John V. Fernandes, Richard T. Moore and others relative to penalties for the employment of certain unauthorized workers. The Judiciary.

SECTION 1. Sections 19C of chapter 149 of the General Laws is hereby repealed.

SECTION 2. Chapter 149 of the General Laws is hereby amended by inserting after section 19B the following section:-

Section 19D.

(a) As used in this section, the following words shall, unless the context otherwise requires, have the following meanings:

"Agency", any agency, department, board or commission of this state or a county, city or town that issues a license for purposes of operating a business in this state.

"Employ", hiring an employee after July 1, 2010.

“Employee”, any person who provides services or labor for an employer in this state for wages or other remuneration, excluding independent contractors.

"Employer", any individual or type of organization that transacts business in this state, that has a license issued by an agency in this state and that employs 1 or more employees in this state. Employer includes this state, any political subdivision of this state and self-employed persons. In the case of an independent contractor, employer means the independent contractor and does not mean the person or organization that uses the contract labor.

"E-verify program", the employment verification pilot program as jointly administered by the United States department of homeland security and the social security administration or any of its successor programs.

"Independent contractor", any individual or entity that carries on an independent business, that contracts to do a piece of work according to the individual's or entity's own means and methods and that is subject to control only as to results. Whether an individual or entity is an independent contractor is determined on a case-by-case basis through various factors, including whether the individual or entity:

(1) Supplies the tools or materials.

(2) Makes services available to the general public.

(3) Works or may work for a number of clients at the same time.

(4) Has an opportunity for profit or loss as a result of labor or service provided.

(5) Invests in the facilities for work.

(6) Directs the order or sequence in which the work is completed.

(7) Determines the hours when the work is completed.

"Intentionally", with respect to a result or to conduct described in this section defining an offense, that a person's objective is to cause that result or to engage in that conduct.

“Knowingly employ an unauthorized alien", the actions described in 8 U.S.C. 1324a. This term shall be interpreted consistently with said 8 U.S.C. 1324a and any applicable federal rules and regulations.

"License”, any agency permit, certificate, approval, registration, charter or similar form of authorization that is required by law and that is issued by any agency for the purposes of operating a business in this state, including:

"Social security number verification service”, the program administered by the social security administration or any of its successor programs.

"Unauthorized alien", an alien who does not have the legal right or authorization under federal law to work in the United States as described in 8 U.S.C. 1324a(h)(3).

(b) An employer shall not knowingly employ an unauthorized alien. If, in the case when an employer uses a contract, subcontract or other independent contractor agreement to obtain the labor of an alien in this state, the employer knowingly contracts with an unauthorized alien or with a person who employs or contracts with an unauthorized alien to perform the labor, the employer violates this subsection.

(c) The attorney general shall prescribe a complaint form for a person to allege a violation of subsection (b). The complainant shall not be required to list the complainant's social security number on the complaint form or to have the complaint form notarized. On receipt of a complaint on a prescribed complaint form that an employer allegedly knowingly employs an unauthorized alien, the attorney general or district attorney shall investigate whether the employer has violated subsection (b). If a complaint is received but is not submitted on a prescribed complaint form, the attorney general or district attorney may investigate whether the employer has violated subsection (b). This subsection shall not be construed to prohibit the filing of anonymous complaints that are not submitted on a prescribed complaint form. The attorney general or district attorney shall not investigate complaints that are based solely on race, color or national origin. A complaint that is submitted to a district attorney shall be submitted to the district attorney in the county in which the alleged unauthorized alien is or was employed by the employer. The county sheriff or any other local law enforcement agency may assist in investigating a complaint. When investigating a complaint, the attorney general or district attorney shall verify the work authorization of the alleged unauthorized alien with the federal government pursuant to 8 U.S.C. 1373(c). A state, county or local official shall not attempt to independently make a final determination on whether an alien is authorized to work in the United States. An alien's immigration status or work authorization status shall be verified with the federal government pursuant to 8 U.S.C. 1373(c). Whoever knowingly files a false and frivolous complaint shall be punished by a fine of not more than $500, or by imprisonment of not more than 30 days, or both.

(d) If, after an investigation, the attorney general or district attorney determines that the complaint is not false and frivolous:

(1) The attorney general or district attorney shall notify the United States immigration and customs enforcement of the unauthorized alien.

(2) The attorney general or district attorney shall notify the local law enforcement agency of the unauthorized alien.

(3) The attorney general shall notify the appropriate district attorney to bring an action pursuant to subsection (e) if the complaint was originally filed with the attorney general.

(e) An action for a violation of subsection (b) shall be brought against the employer by the district attorney in the county where the unauthorized alien employee is or was employed by the employer. The district attorney shall not bring an action against any employer for any violation of subsection (b) that occurs before July 1, 2010. A second violation shall be based only on an unauthorized alien who is or was employed by the employer after an action has been brought for a violation of subsection (b) or subsection (l).

(f) For any action in superior court under this section, the court shall expedite the action, including assigning the hearing at the earliest practicable date.

(g) On a finding of a violation of subsection (b):

(1) For a first violation, as described in paragraph (3), the court:

(i) Shall order the employer to terminate the employment of all unauthorized aliens.

(ii) Shall order the employer to be subject to a 3 year probationary period for the business location where the unauthorized alien performed work. During the probationary period the employer shall file quarterly reports with the district attorney of each new employee who is hired by the employer at the business location where the unauthorized alien performed work.

(iii) Shall order the employer to file a signed sworn affidavit with the district attorney within 3 business days after the order is issued. The affidavit shall state that the employer has terminated the employment of all unauthorized aliens in this state and that the employer will not intentionally or knowingly employ an unauthorized alien in this state. The court shall order the appropriate agencies to suspend all licenses subject to this clause that are held by the employer if the employer fails to file a signed sworn affidavit with the district attorney within 3 business days after the order is issued. All licenses that are suspended under this clause shall remain suspended until the employer files a signed sworn affidavit with the district attorney. Notwithstanding any other law, on filing of the affidavit the suspended licenses shall be reinstated immediately by the appropriate agencies. For the purposes of this clause, the licenses that are subject to suspension are all licenses that are held by the employer specific to the business location where the unauthorized alien performed work. If the employer does not hold a license specific to the business location where the unauthorized alien performed work, but a license is necessary to operate the employer's business in general, the licenses that are subject to suspension are all licenses that are held by the employer at the employer's primary place of business. On receipt of the court's order and notwithstanding any other law, the appropriate agencies shall suspend the licenses according to the court's order. The court shall send a copy of the court's order to the attorney general and the attorney general shall maintain the copy pursuant to subsection (h).

(iv) May order the appropriate agencies to suspend all licenses described in clause (iii) that are held by the employer for not to exceed 10 business days. The court shall base its decision to suspend on any evidence or information submitted to it during the action for a violation and shall consider the following factors, if relevant:

(A) number of unauthorized aliens employed by the employer;

(B) prior misconduct by the employer;

(C) degree of harm resulting from the violation;

(D) whether the employer made good faith efforts to comply with any applicable requirements;

(E) duration of the violation;

(F) role of the directors, officers or principals of the employer in the violation;

(G) other factors the court deems appropriate.

(2) For a second violation, as described in paragraph (3), the court shall order the appropriate agencies to permanently revoke all licenses that are held by the employer specific to the business location where the unauthorized alien performed work. If the employer does not hold a license specific to the business location where the unauthorized alien performed work, but a license is necessary to operate the employer's business in general, the court shall order the appropriate agencies to permanently revoke all licenses that are held by the employer at the employer's primary place of business. On receipt of the order and notwithstanding any other law, the appropriate agencies shall immediately revoke the licenses.

(3) The violation shall be considered:

(i) A first violation by an employer at a business location if the violation did not occur during a probationary period ordered by the court under this subsection or subsection (q) for that employer's business location.

(ii) A second violation by an employer at a business location if the violation occurred during a probationary period ordered by the court under this subsection or subsection (q) for that employer's business location.

(h) The attorney general shall maintain copies of court orders that are received pursuant to subsection (g) and shall maintain a database of the employers and business locations that have a first violation of subsection (b) and make the court orders available on the attorney general's website.

(i) On determining whether an employee is an unauthorized alien, the court shall consider only the federal government's determination pursuant to 8 U.S.C. 1373(c). The federal government's determination creates a rebuttable presumption of the employee's lawful status. The court may take judicial notice of the federal government's determination and may request the federal government to provide automated or testimonial verification pursuant to 8 U.S.C. 1373(c).

(j) For the purposes of this subsection, proof of verifying the employment authorization of an employee through the e-verify program creates a rebuttable presumption that an employer did not knowingly employ an unauthorized alien.

(k) For the purposes of this subsection, an employer that establishes that it has complied in good faith with the requirements of 8 U.S.C. 1324a(b) establishes an affirmative defense that the employer did not knowingly employ an unauthorized alien. An employer is considered to have complied with the requirements of 8 U.S.C. 1324a(b), notwithstanding an isolated, sporadic or accidental technical or procedural failure to meet the requirements, if there is a good faith attempt to comply with the requirements.

(l) An employer shall not intentionally employ an unauthorized alien. If, in the case when an employer uses a contract, subcontract or other independent contractor agreement to obtain the labor of an alien in this state, the employer intentionally contracts with an unauthorized alien or with a person who employs or contracts with an unauthorized alien to perform the labor, the employer violates this subsection.

(m) The attorney general shall prescribe a complaint form for a person to allege a violation of subsection (l). The complainant shall not be required to list the complainant's social security number on the complaint form or to have the complaint form notarized. On receipt of a complaint on a prescribed complaint form that an employer allegedly intentionally employs an unauthorized alien, the attorney general or district attorney shall investigate whether the employer has violated subsection (l). If a complaint is received but is not submitted on a prescribed complaint form, the attorney general or district attorney may investigate whether the employer has violated subsection (l). This subsection shall not be construed to prohibit the filing of anonymous complaints that are not submitted on a prescribed complaint form. The attorney general or district attorney shall not investigate complaints that are based solely on race, color or national origin. A complaint that is submitted to a district attorney shall be submitted to the district attorney in the county in which the alleged unauthorized alien is or was employed by the employer. The county sheriff or any other local law enforcement agency may assist in investigating a complaint. When investigating a complaint, the attorney general or district attorney shall verify the work authorization of the alleged unauthorized alien with the federal government pursuant to 8 U.S.C. 1373(c). A state, county or local official shall not attempt to independently make a final determination on whether an alien is authorized to work in the United States. An alien's immigration status or work authorization status shall be verified with the federal government pursuant to 8 U.S.C 1373(c). Whoever knowingly files a false and frivolous complaint, shall be punished by a fine of not more than $500, or by imprisonment of not more than 30 days, or both.

(n) If, after an investigation, the attorney general or district attorney determines that the complaint is not false and frivolous:

(1) The attorney general or district attorney shall notify the United States immigration and customs enforcement of the unauthorized alien.

(2) The attorney general or district attorney shall notify the local law enforcement agency of the unauthorized alien.

(3) The attorney general shall notify the appropriate district attorney to bring an action pursuant to subsection (o) if the complaint was originally filed with the attorney general.

(o) An action for a violation of subsection (l) shall be brought against the employer by the district attorney in the county where the unauthorized alien employee is or was employed by the employer. The district attorney shall not bring an action against any employer for any violation of subsection (l) that occurs before July 1, 2010. A second violation shall be based only on an unauthorized alien who is or was employed by the employer after an action has been brought for a violation of subsection (l) or subsection (b).

(p) For any action in superior court under this section, the court shall expedite the action, including assigning the hearing at the earliest practicable date.

(q) On a finding of a violation of subsection (l):

(1) For a first violation, as described in paragraph 3, the court shall:

(i) Order the employer to terminate the employment of all unauthorized aliens.

(ii) Order the employer to be subject to a 5 year probationary period for the business location where the unauthorized alien performed work. During the probationary period the employer shall file quarterly reports with the district attorney of each new employee who is hired by the employer at the business location where the unauthorized alien performed work.

(iii) Order the appropriate agencies to suspend all licenses described in clause (iv) that are held by the employer for a minimum of 10 days. The court shall base its decision on the length of the suspension under this clause on any evidence or information submitted to it during the action for a violation and shall consider the following factors, if relevant:

(A) number of unauthorized aliens employed by the employer;

(B) prior misconduct by the employer;

(C) degree of harm resulting from the violation;

(D) whether the employer made good faith efforts to comply with any applicable requirements;

(E) duration of the violation;

(F) role of the directors, officers or principals of the employer in the violation;

(G) other factors the court deems appropriate.

(iv) Order the employer to file a signed sworn affidavit with the district attorney. The affidavit shall state that the employer has terminated the employment of all unauthorized aliens in this state and that the employer will not intentionally or knowingly employ an unauthorized alien in this state. The court shall order the appropriate agencies to suspend all licenses subject to this clause that are held by the employer if the employer fails to file a signed sworn affidavit with the district attorney within 3 business days after the order is issued. All licenses that are suspended for failing to file a signed sworn affidavit shall remain suspended until the employer files a signed sworn affidavit with the district attorney. For the purposes of this clause, the licenses that are subject to suspension are all licenses that are held by the employer specific to the business location where the unauthorized alien performed work. If the employer does not hold a license specific to the business location where the unauthorized alien performed work, but a license is necessary to operate the employer's business in general, the licenses that are subject to suspension are all licenses that are held by the employer at the employer's primary place of business. On receipt of the court's order and notwithstanding any other law, the appropriate agencies shall suspend the licenses according to the court's order. The court shall send a copy of the court's order to the attorney general and the attorney general shall maintain the copy pursuant to subsection G.

(2) For a second violation, as described in paragraph (3), the court shall order the appropriate agencies to permanently revoke all licenses that are held by the employer specific to the business location where the unauthorized alien performed work. If the employer does not hold a license specific to the business location where the unauthorized alien performed work, but a license is necessary to operate the employer's business in general, the court shall order the appropriate agencies to permanently revoke all licenses that are held by the employer at the employer's primary place of business. On receipt of the order and notwithstanding any other law, the appropriate agencies shall immediately revoke the licenses.

(3) The violation shall be considered:

(i) A first violation by an employer at a business location if the violation did not occur during a probationary period ordered by the court under this subsection or subsection (g) for that employer's business location.

(ii) A second violation by an employer at a business location if the violation occurred during a probationary period ordered by the court under this subsection or subsection (g) for that employer's business location.

(r) The attorney general shall maintain copies of court orders that are received pursuant to subsection (q) and shall maintain a database of the employers and business locations that have a first violation of subsection (l) and make the court orders available on the attorney general's website.

(s) On determining whether an employee is an unauthorized alien, the court shall consider only the federal government's determination pursuant to 8 U.S.C. 1373(c). The federal government's determination creates a rebuttable presumption of the employee's lawful status. The court may take judicial notice of the federal government's determination and may request the federal government to provide automated or testimonial verification pursuant to 8 U.S.C. 1373(c).

(t) For the purposes of this section, proof of verifying the employment authorization of an employee through the e-verify program creates a rebuttable presumption that an employer did not intentionally employ an unauthorized alien.

(u) For the purposes of this section, an employer that establishes that it has complied in good faith with the requirements of 8 U.S.C. 1324a(b) establishes an affirmative defense that the employer did not intentionally employ an unauthorized alien. An employer is considered to have complied with the requirements of 8 U.S.C. 1324a(b), notwithstanding an isolated, sporadic or accidental technical or procedural failure to meet the requirements, if there is a good faith attempt to comply with the requirements.

(v) This article shall not be construed to require an employer to take any action that the employer believes in good faith would violate federal or state law.

(w) After July 1, 2010, every employer, after hiring an employee, shall verify the employment eligibility of the employee through the e-verify program.

(x) In addition to any other requirement for an employer to receive an economic development incentive from a government entity, the employer shall register with and participate in the e-verify program. Before receiving the economic development incentive, the employer shall provide proof to the government entity that the employer is registered with and is participating in the e-verify program. If the government entity determines that the employer is not complying with this subsection, the government entity shall notify the employer by certified mail of the government entity's determination of noncompliance and the employer's right to appeal the determination. On a final determination of noncompliance, the employer shall repay all monies received as an economic development incentive to the government entity within 30 days of the final determination. For the purposes of this subsection:

(1) "Economic development incentive" shall mean any grant, loan or performance-based incentive from any government entity that is awarded after July 1, 2010.

(2) "Government entity" shall mean this state and any political subdivision of this state that receives and uses tax revenues.

(y) Every 3 months the attorney general shall request from the United States department of homeland security a list of employers from this state that are registered with the e-verify program. On receipt of the list of employers, the attorney general shall make the list available on the attorney general's website.

(z) The attorney general shall establish the voluntary employer enhanced compliance program. The program is voluntary and an employer is not required to enroll in the program.

(aa) An employer that is on probation may not enroll in the voluntary employer enhanced compliance program. A court shall not consider nonenrollment in the voluntary employer enhanced compliance program as a factor when determining whether to suspend or revoke a license.

(bb) To enroll in the voluntary employer enhanced compliance program, an employer shall submit a signed sworn affidavit to the attorney general. The affidavit shall state that the employer agrees to perform all of the following actions in good faith:

(1) After hiring an employee, the employer shall verify the employment eligibility of the employee through the e-verify program.

(2) To ensure the accuracy of reporting wages to the social security administration, the employer shall verify the accuracy of social security numbers through the social security number verification service for any employee who is not verified through the e-verify program. Within 30 days after enrolling in the voluntary employer enhanced compliance program, the employer shall submit the necessary information to the social security number verification service, including the full name, the social security number, the date of birth and the gender of each employee. On receipt of a failed verification result, the employer shall notify the employee of the date on which the employer received the failed result and instruct the employee to resolve the discrepancy with the social security administration within 90 days after that date. The employer and employee shall resolve any failed result within 90 days after the date on which the employer received the failed result. If the failed result is not resolved within the 90-day period but the employer and employee are continuing to actively and consistently work toward resolving the failed result with the social security administration, the 90-day period does not apply as long as the employer and employee have documented proof of these ongoing efforts to resolve the failed result in good faith and have provided the documented proof to the attorney general. The employer shall verify the accuracy of the social security numbers and resolve any failed verification results in a consistent manner for all employees.

(3) In response to a written request by the attorney general or district attorney stating the name of an employee for whom a complaint has been received, the employer shall provide the attorney general or district attorney the documents indicating that the employee was verified through the e-verify program or that the accuracy of the employee's wage report was verified through the social security number verification service.

(cc) An employer that is enrolled in the voluntary employer enhanced compliance program shall not be in violation of subsection (b) or subsection (l) regarding an employee named in a complaint if the employer has completed both of the following:

(1) In good faith verified the employment eligibility of the employee named in the complaint through the e-verify program or in good faith verified the accuracy of the social security number of the employee named in the complaint through the social security number verification system as required by paragraphs (1) and (2) of subsection (bb).

(2) Provided the attorney general or district attorney with the documents, as required by paragraph (3) of subsection (bb), indicating that the employer verified the employee named in the complaint.

(dd) The attorney general shall maintain a list of employers enrolled in the voluntary employer enhanced compliance program and make the list available on the attorney general's website.

(ee) The attorney general shall develop a form of recognition that an employer may display to the general public for enrolling in the voluntary employer enhanced compliance program.

(ff) If an employer does not fully comply with this section, the attorney general shall terminate the employer's enrollment in the voluntary employer enhanced compliance program. At any time, an employer may voluntarily withdraw from the voluntary employer enhanced compliance program by notifying the attorney general. Beginning on the date of termination or withdrawal, subsection (cc) no longer applies to the employer and the employer shall immediately remove any form of recognition from public display that is authorized under this section.

(gg) For the purposes of this section, independent contractor status applies to an individual who performs services and is not an employee pursuant to section 3508 of the internal revenue code.

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